In the majority of criminal cases, an attorney begins by examining why and how law enforcement came into contact with the client.

For example, in a DUI, Driving While License Suspended, or in the case of drugs in a vehicle or the discovery that a passenger or the driver had a warrant: why was the car pulled over?

In the case of someone unconscious behind the wheel or already stopped: why did the officer have the person, for example, roll down the window or get out of the vehicle?

In the case of an officer stopping someone on the street or on a bicycle and subsequently finding drugs or that the person had an outstanding warrant: why did the officer approach the person?  What exactly was said by the officer?  What was the person doing and where?

In our experience, most people believe that they have fewer rights than they actually do.  You owe it to yourself to become educated on your rights.

Of course, it is always good advice to be polite and professional when dealing with law enforcement.  As we often tell clients: “It ain’t worth getting tased over.”

Even if you feel that an officer is being rude, antagonistic, or unprofessional, you are not helping the situation by responding in kind, and, in some cases you could actually be interfering with an otherwise lawful investigation, resulting in criminal charges.

Officers will often ask, during a traffic stop or on the street:

“Do you mind if I search you (or your vehicle or belongings); or

“Can I search you (or your vehicle or belongings); or

“Can I pat you down); or (our personal favorite):

“’Let me search you.”

A good rule of thumb:

If the officer had the right to search you, then why would he or she be asking you? 

If the officer had the right to search you, then why would you have to “let” him or her search you?

In these cases, we often ask people why they would ever consent to such a search.  More often than not, the person will say that they thought they had to let the officer search or that the officer was going to search them anyway.

We then turn the question around and ask the person:

If the officer had the right to search you, then why would he be asking you? 

If the officer had the right to search you, then why would you have to “let” him or her search you?

People don’t typically ask permission to do things that they have a right to do.  Cops are no different.

If the officer believes he has the right to search or conduct a pat-down, he or she is simply going to search or conduct a pat-down.

Consider it this way: if you are at home watching television with your wife, you don’t ask permission to use the restroom—you just go to the restroom.  You don’t say, “Let me go to the restroom.”  It’s your house.  You have the right to use the restroom.

Consider another example: when officers have arrested someone, they don’t ask the person’s permission to search him or her (or in some cases his or her vehicle or belongings).

When officers have a search warrant, they don’t ask the person’s permission to search.

Officers don’t ask to search in these circumstances because they have the right to search in these and other limited situations.

But the cop was going to search me anyway:

Some officers may simply search you or your vehicle or belongings even if you do not consent, but you are not helping yourself any favors by giving them permission.

The law clearly states that the State has the burden of proving the legality of every warrantless search.  This means that if there is no search warrant, valid arrest, or other limited exception  it is much more difficult for the State to use evidence discovered during the search against you in court.

If you simply agree to the search because you think the officer is going to search you anyway, then you have just made the State’s job much easier.

The officer is asking to search because he or she wants to find evidence that you have committed or are about to commit a crime.

An officer, in most circumstances, asks to search someone because the officer is trying to find evidence of a crime.  While officers often do a lot of good in the community, the officer in this situation is not doing you any favors.

Be firm but polite and never physically resist or struggle with the officer.

As stated before, be polite and never physically resist or strike an officer.  You could create more trouble for yourself.  If an officer insists on searching you or your belongings, politely but firmly inform him or her that you do not agree to the search, but never physically struggle with the officer or try to physically take your belongings away from the officer.

Also, as a practical matter, it is incredibly foolish to get involved in a physical altercation with someone who has a gun, taser, and a dozen officers who can respond in minutes for back up.

So, the take-away lessons are:

If an officer asks to search or tells you to “let” him search, politely but firmly say no, and never physically resist or struggle with the officer.

About the Author: Armando Edmiston is a partner at the Law Office of J. Armando Edmiston, P.A.. He defends DUI and criminal cases in the Tampa, FL area.

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